James Mammone, III v. Charlotte Jenkins

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0216p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
JAMES MAMMONE,
│
Petitioner-Appellant, │
> No. 20-3069
│
v. │
│
CHARLOTTE JENKINS, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court for the Northern District of Ohio at Akron.
No. 5:16-cv-00900—James G. Carr, District Judge.
Argued: July 19, 2022
Decided and Filed: September 21, 2022
Before: GIBBONS, ROGERS, and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Vicki Ruth Adams Werneke, Office of the Federal Public Defender, Cleveland,
Ohio, for Appellant. Jerri L. Fosnaught, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Vicki Ruth Adams Werneke, Sharon A. Hicks,
Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Charles L. Wille,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. James Mammone, a death-row prisoner in
Ohio, appeals the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254. Mammone raises four issues on appeal: whether pretrial publicity was so prejudicial that
No. 20-3069 Mammone v. Jenkins Page 2
he did not receive a fair trial; whether the jurors unconstitutionally prayed before penalty-phase
deliberations; whether trial counsel was ineffective; and whether appellate counsel was
ineffective. For the reasons set forth below, we affirm the denial of habeas relief.
I. BACKGROUND
Because this case does not turn on factual disputes, we rely on the following account of
the facts from the Ohio Supreme Court’s decision:
A. The State’s Evidence
1. Testimony of Marcia Eakin and Other Witnesses
Mammone’s trial began on January 11, 2010. The state called Mammone’s ex-
wife, Marcia Eakin, to testify. Marcia testified about the breakdown of her
relationship with Mammone and stated that she first told Mammone in August
2007 that she intended to leave him. On that day, Mammone stayed home from
work and refused to let her or their two children, Macy and James IV, leave the
family’s Canton residence. Mammone broke Marcia’s cell phone and took all the
house phones. She did not leave him that day.
Marcia and Mammone sought counseling, but she did not feel that the marital
relationship improved. She testified that Mammone threatened her, warning that
“if I tried to leave he would kill me and the children.” Unbeknownst to
Mammone, Marcia contacted a lawyer to initiate the process of filing for divorce.
On June 13, 2008, Mammone learned that Marcia was seeking a divorce when he
intercepted a call from Marcia’s lawyer. According to Marcia, Mammone again
threatened to kill her, declaring: “I told you if you tried to leave me I was going to
kill you.” He told Macy and James on that date that “it was time for mommy to
go to her grave.” Mammone did not let Marcia or the children out of his sight for
the rest of the day.
Marcia explained that she and the children managed to get away from Mammone,
and she sought a civil protection order against him. On July 10, 2008, the Stark
County Common Pleas Court issued a two-year protection order requiring
Mammone to stay more than 500 feet away from Marcia. He was permitted only
supervised contact with the children.
Marcia testified that the Mammones’ divorce was finalized in April 2009. Under
the final divorce decree, Mammone was permitted overnight visitation with the
children four times a month and evening visitation twice a week. Marcia
explained that Mammone picked up and dropped off the children at the home of
No. 20-3069 Mammone v. Jenkins Page 3
her parents, Margaret and Jim Eakin, so that Mammone would not have direct
contact with Marcia or know where she lived. During visits, Mammone was
permitted to text Marcia about matters pertaining to the children.
Marcia testified that on Sunday, June 7, 2009, Mammone picked up five-year-old
Macy and three-year-old James at the Eakins’ home for a scheduled overnight
visit. Mammone was driving his green BMW.
Marcia met a friend, Ben Carter, to play tennis and have dinner. At 4:25 p.m.,
Mammone began to text Marcia. Although the two never spoke that night, they
exchanged dozens of text messages over the next 15 hours, and records of these
messages were introduced at trial.
At first, Mammone sought advice about consoling Macy, who was upset. But he
quickly shifted to blaming Marcia for the children’s suffering, texting: “How long
are we going to let these children that you * * * had to have suffer?” Throughout
the evening Mammone repeatedly texted Marcia, accusing her of “ruin[ing] lives”
by putting herself first. He admonished her to put her children first and demanded
to know what was more important than the kids at that moment. Marcia replied
by texting that Mammone should “stop tormenting” the children. No fewer than
five times, she offered to have Mammone return the children to her mother’s
house or asked if she could meet him to pick up the children.
Mammone advised Marcia in a text that he was “at [the] point of no return” and
that he “refuse[d] to let gov restrict my right as a man to fight for the family you
promised me.” At 9:11 p.m., he warned Marcia that “safe and good do not apply
to this night my love.” Marcia promptly responded, texting: “Do not hurt them.”
At 9:35 p.m., she asked him to “[k]eep them safe.” Mammone texted:
You got five minutes to call me back on the phone. I am not fucking
around. I have stashed a bunch of pain killers for this nigh[t] * * * i hope u
would never let happen. I have put on my wedding band, my fav shirt and
I am ready to die for my love tonight. I am high as a kite * * * bring o[n]
the hail of bullets if need be.
At this point, Marcia called 9–1–1. The state played a recording of the call at
trial. On the recording, Marcia advised the 9–1–1 operator that her children were
in a car with her ex-husband, who had threatened to take “a bunch of painkillers”
and had said that he was “ready to die tonight.” While Marcia was on the line
with the 9–1–1 operator, the operator attempted to call Mammone, but he would
not answer his phone. After speaking to the 9–1–1 operator, Marcia texted
Mammone that she would not call him (in accordance with the operator’s advice),
and again urged him to “keep the kids safe.” At 10:18 p.m., Marcia in a text to
Mammone asked him to meet her so that she could pick up the kids. Marcia’s
friend Carter confirmed that he and Marcia then drove around looking for
Mammone.
No. 20-3069 Mammone v. Jenkins Page 4
Marcia testified that she then contacted both Mammone’s mother and the wife of
Richard Hull, Mammone’s friend and former employer. Phone records indicate
that Richard Hull began to text Mammone, advising him to calm down and keep
the kids safe. Hull’s texts suggested that Mammone should drop the kids off with
Mammone’s mother. Hull testified that he and his father also drove around for a
time looking for Mammone but did not find him.
At 2:00 a.m. on June 8, Mammone sent a text to Marcia, stating, “I am not one
who accepts divorce. * * * I married you for love and for life * * *.” At 2:36
a.m., he wrote, “I am so dead inside without u. The children r painful * * *
[r]eminders of what I have lost of myself. This situation is beyond tolerable. So
what happens next?” At 2:50 a.m., Mammone reiterated in a text to Marcia that
the love of his children was “only a source of pain” without her love.
Hull testified that around 3:00 a.m., he spoke to Marcia and decided not to go
back out looking for Mammone because they were hopeful that everything would
be fine. Marcia attempted to end her text conversation with Mammone, writing,
“Please[ ] keep kids safe good night.”
At 5:34 a.m., Mammone texted Marcia: “Last chance. Here it goes.”
One of the Eakins’ neighbors, Edward Roth, testified that around 5:30 a.m., he
heard gunshots and screaming through his open bedroom window. Roth said that
he saw a goldish-tan-colored car leaving the Eakin residence and several minutes
later saw the same car returning to the street to sit in the middle of the intersection
near the house. Roth called 9–1–1. A law-enforcement officer testified that he
and another officer arrived to find Margaret Eakin lying severely injured on the
floor of a second-floor bedroom. The officers observed two shell casings and a
broken lamp.
Marcia testified that she heard a car roar up her driveway around 5:40 a.m. From
a second-floor bedroom window, she saw Mammone get out of the car and empty
a red gasoline container onto Carter’s truck, which was parked in the driveway.
She called 9–1–1, and a recording of the call was introduced at trial by the state.
While Marcia was on the phone, she “heard the glass in my back door breaking in
and he was inside my apartment.” She did not hear Mammone speak, but she
heard something that he had thrown hit the ceiling. He then went back outside
and threw things at the windows. Mammone left before two deputy sheriffs
arrived. According to the deputies, the back door had been forced open, the
screen-door glass was broken, and pieces of the door frame were on the kitchen
floor.
The deputies quickly realized that the incident at Marcia’s apartment was linked
to the incident at the Eakins’ residence, but law-enforcement officers had not yet
located Mammone, and they did not know whether the children were safe.
No. 20-3069 Mammone v. Jenkins Page 5
At 6:04 a.m., Mammone left a voice mail on Hull’s phone, in which the jury
heard Mammone confess to Hull, “I killed the kids.” Mammone’s voice mail
continued:
I said it when I got locked up fucking 358 days ago that she fucking has to
die and unfortunately as fucking sick as it sounds I concluded after a while
that she took my family from me and the fucking way to really get her is
to take fucking her mom and her kids from her. I missed her dad by a
couple minutes. I drove by the house, he was there, and I fucking circled
the block and he must’ve just pulled out or I’d have fucking popped his
fucking ass too.
2. Testimony of Officers
Sergeant Eric Risner testified that he and other officers apprehended Mammone
sometime after 7:30 a.m. on June 8, 2009, in the driveway of his residence. They
found Macy and James dead in the back seat of Mammone’s car, still strapped
into their car seats. The children had apparently been stabbed in the throat.
Officer Randy Weirich testified that he removed two items from Mammone’s car
at the scene: a bloody knife from the back seat and a firearm from the front seat.
The firearm had a live round in the chamber, its hammer was cocked, and the
safety was off.
After the vehicle was towed for processing, Officer Weirich cataloged the rest of
the car’s contents. The evidence log includes ammunition for a .32–caliber gun; a
backpack containing knives, heavy-duty shears, and tongs; an axe handle with
nails protruding from holes that had been drilled into it; a baseball bat; a military-
style bayonet; Mammone’s cell phone and a spare battery; a framed wedding
photo of Marcia; and Marcia’s dried wedding bouquet. Officer Weirich also
removed from the car a switchblade and a pocket knife.
3. Mammone’s Confession
Mammone was arrested and transported to police headquarters. Once in custody,
he signed a written waiver of his Miranda rights and gave a full confession. The
state introduced an audio recording of the confession at trial.
In his confession, Mammone explained that he had picked up Macy and James for
visitation at about 4:00 p.m. on June 7. He then drove past Marcia’s nearby
apartment. (Mammone admitted that he was not supposed to know where Marcia
lived, but he had learned her new address and occasionally stalked her.) He saw a
truck parked in Marcia’s driveway, and he recognized it because it had been
parked there two weeks earlier. Macy told him that the truck belonged to a boy.
No. 20-3069 Mammone v. Jenkins Page 6
Mammone explained that this news “didn’t make me very happy obviously.” He
circled the block, and the truck was gone when he drove by again.
Mammone stated that he suspected that Marcia was on a date, so he went “on the
hunt” for her with the children in the back seat. He spent a few hours driving
around looking for Marcia, all the while “sending [her] agitating text messages
trying to get her attention.”
Around 6:30 p.m., Mammone took the children to his place for dinner. As he
continued to text Marcia, he was “getting to the point of no return.” He figured
that he had already violated the protection order, and he had “had enough.” He
said that he had long hoped that things would improve, but stated that “once I
suspected that she might have a guy that she was interested in that was it for me, I
can’t deal with that. It’s just not anything that I’m willing to accept.”
According to Mammone, after dinner he loaded the children into a gold 1992
Oldsmobile that he had recently purchased. He stated that he had a Beretta .32–
caliber automatic handgun, a gasoline container (which he later stopped to refill),
a Scripto lighter, a bag full of butcher-type knives, a bayonet, a baseball bat, and
another bat-type weapon he had made by driving nails through a hickory shovel
handle or axe handle. He also said that he had approximately a dozen painkillers.
He took one pill around 9:00 p.m. to “deaden the pain” if he was shot by police
officers later that night.
Mammone stated that he parked at Westminster Church (his and Marcia’s “family
church”) just before 5:45 a.m. He stabbed Macy and James with a butcher knife
while they were still strapped in their car seats. Mammone related that he had to
stab each child in the throat four or five times, which was more than he had
expected would be necessary. When detectives asked why he had stabbed the
children rather than shooting them, Mammone offered three reasons: (1) noise,
(2) uncertainty about whether his gun was dependable, and (3) a desire to
conserve rounds for what might lie ahead.
Mammone said that after killing Macy and James, he drove to the Eakins’ home
at approximately 5:45 a.m. He left the children in the back seat of the car and
“barged in” through the Eakins’ unlocked door carrying his Beretta. Mammone
found Margaret in a guest room and shot her in the chest. The gun jammed before
he could fire a second round, so he began to hit Margaret with the gun. He then
beat her with a lamp until the lamp began to fall apart. Mammone managed to
unjam the gun and shot Margaret in the face at close range. He told police
officers that a third bullet may have fallen out of the gun when he was attempting
to dislodge the slide.
Mammone stated that he then drove to Marcia’s nearby apartment. The truck that
he had seen the previous evening was in the driveway. He poured gasoline on the
truck and attempted to light it, but the lighter fell apart in his hands.
No. 20-3069 Mammone v. Jenkins Page 7
Mammone related that after he was unable to light the fire, he retrieved four
weapons from his car: (1) the handgun, which he had to unjam again to prepare to
fire, (2) the bayonet, which he put in his front pocket, (3) the baseball bat, and
(4) the “bat type of weapon” that he had made. He smashed Marcia’s screen-door
window and back door with the bat and then entered the apartment. Once inside,
Mammone unsuccessfully looked for matches or a lighter. He did not go upstairs
because he was concerned that Marcia or “the person that was there to protect
her” might have a firearm, and he did not want to be a “sitting duck.” Mammone
left the apartment and began throwing the baseball bat at a second-floor window,
but he became frustrated. He searched his car for another lighter and, unable to
find it, drove away.
After killing his mother-in-law and breaking into Marcia’s apartment, Mammone
drove around with the children’s bodies for several hours. He had expected that
he would want to die after committing these violent acts, but he was surprised to
find that he “didn’t really feel * * * like dying.” He also “didn’t feel like getting
arrested,” so he drove in areas where he did not expect to see police officers and
drove the speed limit. He claimed that he then took approximately a dozen
pills—which he identified as Valium or painkillers—but not enough to cause an
overdose.
Mammone said that he then drove to the Independence Police Station to turn
himself in, but he fell asleep in the station parking lot. When he woke, he
contacted a relative who arranged for Mammone to turn himself in at a Canton
park. En route to the park, Mammone decided to go by his apartment to switch to
his BMW, with the idea of leaving the children in the Oldsmobile so that they
would not be part of any scene at the park. But an unmarked police car was
waiting for him, and he was apprehended.
Mammone told officers that he had contemplated “doing this” for 22 months, but
that he had initially intended to kill Marcia, not Macy and James. He said that he
killed his mother-in-law because it was “a major blow to [Marcia] to not have her
mother.” He indicated that hurting Marcia was one of the motives for killing
Macy and James as well, but he also cited his objection to divorce as a reason for
their murders. Mammone said that he did not intend to kill Marcia on June 8, but
that he did plan to maim her. He had wanted to beat Marcia’s uterus area with his
homemade weapon (making her unable to conceive children), to break her ankles
with the baseball bat (something she feared that she had seen done in a movie),
and to cut out her tongue (as punishment for not speaking to him). Mammone
also said that he would have killed the man at Marcia’s apartment if he could
have.
No. 20-3069 Mammone v. Jenkins Page 8
4. Forensic Evidence
Dr. P.S. Murthy, the Stark County coroner, performed autopsies on Margaret,
Macy, and James on June 9, 2009. He testified that he determined that the cause
of death for all three victims was homicide.
According to Dr. Murthy, Margaret had suffered two fatal gunshot wounds and
more than 20 blunt-impact injuries and lacerations, consistent with being struck
by the butt of a gun and by a household lamp. One bullet had been fired into
Margaret’s left upper lip from a distance of about six to eight inches and was
recovered from the occipital lobe of her brain. Another bullet pierced Margaret’s
right upper shoulder, perforated her right lung, and exited through her back.
Dr. Murthy testified that both children died as a result of stab wounds with
exsanguination (massive blood loss). Macy had multiple stab wounds to the neck,
while James had a single stab wound that went through his neck. Both children’s
lungs were filled with aspirated blood. Macy’s right hand and right leg bore
multiple defensive wounds, and James had a defensive wound on his right hand.
According to a laboratory analyst who testified, multiple bloodstains on
Mammone’s shirt at the time of his arrest had DNA profiles consistent with
Margaret’s DNA. In addition, a laboratory analyst identified Mammone’s
fingerprint on a lighter that officers retrieved from a flowerbed near Marcia’s
apartment.
Law-enforcement officers took bodily fluid samples from Mammone on the day
of his arrest. According to a laboratory analyst, tests did not reveal any trace of
opiates or acetaminophen in Mammone’s blood.
B. The Defense Case
Mammone did not present a case in defense during the trial phase. Before the
trial began, defense counsel advised the court during a bench conference that as a
matter of strategy, Mammone had “elected to, in effect, concede the trial phase in
this matter,” and Mammone himself informed the judge that he instead preferred
to focus on the second phase of trial. During a brief opening statement, defense
counsel candidly explained to the jury that Mammone did not “contest[ ] much of
the evidence and/or facts with respect to this matter.” Mammone’s counsel
repeated that statement during trial-phase closing arguments, emphasized
Mammone’s honesty in responding to police officers’ questioning, and urged the
jury to decide the case based on the law rather than on emotion.
State v. Mammone, 13 N.E.3d 1051, 1060–65 (Ohio 2014) (paragraph numbers omitted).
No. 20-3069 Mammone v. Jenkins Page 9
On January 14, 2010, a jury convicted Mammone of the aggravated murder of his two
children and his former mother-in-law, aggravated burglary, violation of a protective order, and
attempted arson. Mammone’s mother, his father, and a psychologist testified on his behalf at
sentencing, and Mammone gave a five-hour unsworn statement. The jury recommended the
death sentence for each aggravated murder. The trial court accepted the jury’s recommendation,
imposing three death sentences in open court on January 22, 2010. Additionally, the court
sentenced Mammone to twenty-seven years of consecutive imprisonment for his noncapital
offenses. The Ohio Supreme Court affirmed Mammone’s convictions and sentences in 2014.
Mammone, 13 N.E.3d at 1100. Mammone filed a post-conviction petition while his direct appeal
was pending. The trial court denied the petition without an evidentiary hearing, and the Ohio
Court of Appeals affirmed. State v. Mammone, No. 2012CA00012, 2012 WL 3200685 (Ohio Ct.
App. 2012). Mammone moved to reopen his direct appeal in 2014 to raise claims of ineffective
assistance of appellate counsel. The Ohio Supreme Court denied the motion in 2016.
Mammone filed a federal habeas petition in February 2017 and an amended petition in
October 2017. The district court denied Mammone’s petition in October 2019 and granted him a
certificate of appealability (“COA”) as to four claims and sub-claims. The district court
subsequently amended the COA to clarify one of the claims. In February 2020, Mammone
moved this court to stay the proceedings and hold his appeal in abeyance so he could litigate
three claims in state court. We denied Mammone’s motion in an order entered June 11, 2020,
concluding he was not entitled to a stay and abeyance because his claims were exhausted and he
had no remaining state court remedies. Mammone moved to expand the COA granted by the
district court in July 2020, which we granted to include an additional subclaim.
II. STANDARD OF REVIEW
We review a district court’s denial of a petition for a writ of habeas corpus de novo and
its factual findings for clear error. Scott v. Houk, 760 F.3d 497, 503 (6th Cir. 2014). Under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court shall not grant habeas
relief on any claim that was adjudicated on the merits in state court unless the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States; or . . . was based on an
No. 20-3069 Mammone v. Jenkins Page 10
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)–(2).
Under § 2254(d)(1), the “contrary to” clause, “a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000).
Under § 2254(d)(2), the “unreasonable application” clause, “a federal habeas court may grant the
writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the [petitioner’s] case.” Id. at
413; see also Harrington v. Richter, 562 U.S. 86, 100 (2011). Federal habeas relief is available
only if the state court’s decision was objectively unreasonable. Yarborough v. Alvarado, 541
U.S. 652, 665 (2004); Joseph v. Coyle, 469 F.3d 441, 468 (6th Cir. 2006). The petitioner must
show that the state court’s ruling was “so lacking in justification that there was an error . . .
beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Section 2254(d)
is a purposefully demanding standard, Richter, 562 U.S. at 102; Montgomery v. Bobby, 654 F.3d
668, 676 (6th Cir. 2011) (en banc), and it requires that state court determinations “be given the
benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The petitioner has the burden of rebutting, by
clear and convincing evidence, the presumption that the state court’s factual findings were
correct. See 28 U.S.C. § 2254(e)(1).
III. DISCUSSION
There are four issues certified for appeal: (1) whether the state trial court should have
presumed that the pretrial publicity about Mammone’s case prejudiced his ability to receive a fair
trial in Stark County; (2) whether the jurors violated Mammone’s right to a fair trial by praying
before their penalty-phase deliberations; (3) whether trial counsel were ineffective for: (a) failing
to raise a defense of not guilty by reason of insanity, (b) failing to present evidence that
Mammone has autism spectrum disorder, (c) failing to retain a neuropsychologist to evaluate
Mammone, and (d) allowing Mammone to make an unsworn statement at the penalty phase or
failing to prepare him to give a more effective statement; and (4) whether appellate counsel was
No. 20-3069 Mammone v. Jenkins Page 11
ineffective for not arguing that trial counsel were ineffective for urging the jury to consider
Mammone’s mental state as mitigation evidence under Ohio Rev. Code § 2929.04(B)(3) when
the defense’s own evidence foreclosed the jury’s ability to do so. We discuss each issue in turn.
A. Whether the state trial court should have presumed pretrial publicity about
Mammone’s case prejudiced his ability to receive a fair trial in Stark County.
Mammone argues the trial court denied his right to due process and a fair trial by an
impartial jury when it denied his motion for a change of venue due to pervasive and prejudicial
pretrial publicity. He contends that the trial court should have presumed prejudice and that the
state and district courts’ analyses were contrary to and an unreasonable application of clearly
established federal law. Mammone does not argue that any of the seated jurors were actually
biased against him.
Before his trial began in state court, Mammone moved for a change of venue on the basis
of pretrial publicity. Mammone, 13 N.E.3d at 1065–66. He pointed to articles from a local
newspaper’s website; comments posted by online readers; posts from other websites; and
coverage by radio, television, and other publications. Id. Notably, Mammone himself sent a
letter of confession to a local newspaper, which the newspaper published on the front page.
Mammone’s confession letter was published four months before the trial and was not admitted
into evidence. Id. at 1069 & n.2. Mammone contended that trying to seat a jury in Stark County,
Ohio, would be futile and asked the trial court to presume prejudice. The trial court found it
would be premature to change venue before conducting voir dire and denied the motion, but it
left the issue open for consideration during and after voir dire. Id. at 1066. The court asked each
potential juror to complete an extensive publicity questionnaire and permitted thorough
questioning about publicity during voir dire. Id. at 1069. Mammone did not renew his motion.
On direct appeal, the Ohio Supreme Court affirmed. The court held that pretrial publicity
did not justify the presumption of prejudice, that plain error review applied to Mammone’s
assertion of actual bias because he did not argue actual bias in the trial court, and that the trial
court did not plainly err. Id. at 1069–70. The court noted prejudice from pretrial publicity is
presumed only in rare cases. Id. at 1067 (citing Sheppard v. Maxwell, 384 U.S. 333 (1966),
Estes v. Texas, 381 U.S. 532 (1965), and Rideau v. Louisiana, 373 U.S. 723 (1963)). The Ohio
No. 20-3069 Mammone v. Jenkins Page 12
Supreme Court listed the four factors that the Supreme Court has identified as relevant to the
presumption of prejudice:
(1) the size and characteristics of the community in which the crime occurred,
(2) whether media coverage about the defendant contained “blatantly prejudicial
information of the type readers or viewers could not reasonably be expected to
shut from sight,” (3) whether the passage of time lessened media attention, and
(4) whether the jury’s conduct was inconsistent with a presumption of prejudice.
Id. at 1067–68 (quoting Skilling v. United States, 561 U.S. 358, 382–83 (2010)). The court
observed, “Skilling did not hold that these four factors are dispositive in every case or indicate
that these are the only relevant factors in a presumed-prejudice analysis.” Id.After comparing the instant circumstances to cases in which prejudice was presumed, the
Ohio Supreme Court held that several factors distinguished Mammone’s case. Id. at 1068–70.
First, Mammone’s confession was printed, not televised, so the public did not view him
confessing. Id. at 1069. Second, the confession in Rideau was broadcast just weeks before trial
and roughly one-third of the local population saw it, whereas Mammone’s confession was
published only once, more than four months before trial, and Mammone did not show that the
letter’s exposure was similar to that in Rideau. Id. Third, Mammone himself sent his confession
to the newspaper, while the defendant in Rideau played no role in disseminating his confession.
Id. Finally, the voir dire transcript refuted Mammone’s assertion that many of the potential
jurors had been prejudiced by media accounts; rather, dozens of potential jurors said they knew
nothing about the case, all potential jurors were instructed to disregard information from outside
sources, and the trial court excused those who indicated they could not set aside their preexisting
opinions. Id. at 1069–70. The Ohio Supreme Court held that it could not conclude that pretrial
publicity rendered Mammone’s trial a “hollow formality.” Id. at 1070 (quoting Rideau, 373 U.S.
at 726). The district court held that the Ohio Supreme Court’s decision was neither contrary to
clearly established Supreme Court precedent nor involved an unreasonable application thereof.
The Constitution guarantees defendants the right to a fair trial by an impartial jury.
United States v. Tsarnaev, 142 S. Ct. 1024, 1034 (2022); Irvin v. Dowd, 366 U.S. 717, 722
(1961). “Prejudice resulting from pretrial publicity can be presumptive or actual.” Foley v.
Parker, 488 F.3d 377, 387 (6th Cir. 2007). The Supreme Court has held presumed prejudice is
No. 20-3069 Mammone v. Jenkins Page 13
appropriate only in cases where press coverage “utterly corrupted” a trial’s atmosphere. See
Murphy v. Florida, 421 U.S. 794, 798 (1975) (citing Irvin, Rideau, Estes, and Sheppard). But
such extreme cases are rare. Skilling, 561 U.S. at 381; Foley, 488 F.3d at 387. Extensive media
coverage and knowledge within the community are insufficient to create a presumption of
prejudice. Dobbert v. Florida, 432 U.S. 282, 303 (1977).
The Ohio Supreme Court’s decision was a reasonable application of federal law. The
state court correctly identified clearly established law on the presumption of prejudice. In
Skilling, the Court called Rideau the “foundation precedent” on this issue and discussed Estes
and Sheppard. 561 U.S. at 379–81. The circumstances in Estes and Sheppard are
distinguishable because those cases, unlike this one, involved news media disrupting court
proceedings. See Estes, 381 U.S. at 538 (in which pretrial publicity swelled to the point that
reporters and television crews overran the courtroom and bombarded the community with
coverage of pretrial hearings); Sheppard, 384 U.S. at 355 (in which “bedlam reigned at the
courthouse during the trial and newsmen took over practically the entire courtroom”).
In Rideau, local television stations broadcasted a filmed interrogation in which the
defendant confessed without counsel. 373 U.S. at 724. It was shown on television three times
with estimated audiences of 24,000, 53,000, and 20,000 in a community of approximately
150,000. Id. The trial occurred less than two months after the defendant’s confession was
televised. Id. at 729 (Clark, J., dissenting). The Supreme Court held that the trial court denied
the defendant due process when it denied a change of venue. Id. at 727. “For anyone who has
ever watched television the conclusion cannot be avoided that this . . . in a very real sense was
Rideau’s trial—at which he pleaded guilty to murder. Any subsequent court proceedings in a
community so pervasively exposed to such a spectacle could be but a hollow formality.” Id. at
726. Mammone’s case involved substantially less publicity. The community was exposed to the
written word, not a televised spectacle. Mammone’s letter appeared in the newspaper more than
four months before trial, while the video of Rideau’s confession aired less than two months
before trial. Even if Mammone’s letter was available on the web up to the time of trial, it
presumably had its greatest impact when first printed. Mammone did not establish how many
people were exposed to publicity about his case, or even attempt to demonstrate how widely the
No. 20-3069 Mammone v. Jenkins Page 14
newspaper was distributed, while the record in Rideau, by contrast, indicated a substantial
portion of the community viewed the defendant’s confession. Id. at 724.
In addition, the Ohio Supreme Court found that the voir dire transcript refuted
Mammone’s assertion that many of the potential jurors had been prejudiced by media accounts
and had such strong opinions that they could not or would not change their minds. Mammone,
13 N.E.3d at 1069. The trial court required each potential juror to complete an extensive
publicity questionnaire, permitted thorough questioning about publicity issues, instructed
potential jurors to disregard information from outside sources, sought assurances that jurors
would set aside preexisting opinions and be impartial, warned jurors to avoid publicity of the
trial, and excused potential jurors who seemed incapable of setting aside preexisting opinions.
Id. at 1069–70.
We defer to the trial court’s assessment of the jurors’ impartiality and credibility. See
Skilling, 561 U.S. at 386. When considering issues of pretrial publicity, “primary reliance on the
judgment of the trial court makes [especially] good sense” because the judge sits in the
community allegedly influenced by the publicity and “may base her evaluation on her ‘own
perception of the depth and extent of news stories that might influence a juror.’” Id. (quoting
Mu’Min v. Virginia, 500 U.S. 415, 427 (1991)). Mammone did not rebut the state court’s factual
finding, so it is presumed to be correct. See § 2254(e)(1). Finally, nothing in Rideau precludes a
court from considering the defendant’s role in pretrial publicity. There, the Court noted it was
not the defendant’s idea to broadcast his confession but concluded that the source of the publicity
was irrelevant. Rideau, 373 U.S. at 726. The Court has not addressed Mammone’s situation, in
which a defendant first caused and later protested pretrial publicity. The Ohio Supreme Court’s
denial of Mammone’s claim was not an objectively unreasonable application of Supreme Court
precedent. See Yarborough, 541 U.S. at 665.
B. Whether the jurors violated Mammone’s right to a fair trial by praying before
their penalty-phase deliberations.
Mammone argues that by praying, the jury abdicated its responsibility for sentencing by
basing its determination on divine will rather than the weight of the aggravating and mitigating
No. 20-3069 Mammone v. Jenkins Page 15
factors. He alleges that the jury’s actions deprived him of a fair trial and fair and reliable
sentencing, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments.
Mammone raised this claim in his post-conviction petition. In support, he submitted an
affidavit from an Ohio Public Defender’s Office investigator who interviewed five of the jurors.
The investigator stated that before deliberations in the penalty phase, a juror asked if they could
say a prayer and all of the jurors agreed to do so. Mammone argued that the introduction of
religion amounts to extrajudicial evidence and that the jurors substituted divine authority for
their own responsibility for imposing death. The trial court denied the claim. The Ohio Court of
Appeals affirmed, refusing to consider the affidavit under Ohio Rule of Evidence 606(B).
Mammone, 2012 WL 3200685, at *3. The district court held that the state court’s denial of
Mammone’s claim was reasonable. The court concluded that § 2254 foreclosed relief, noting
that there is no Supreme Court precedent forbidding jurors from praying or holding that prayer
amounts to an extraneous influence.
The Ohio Court of Appeals decision was not contrary to or an unreasonable application
of Supreme Court precedent. As an initial matter, Ohio Rule of Evidence 606(B) bars testimony
from jurors about their deliberations or mental processes but permits admission of evidence that
the jury was influenced by outside or extraneous information. See Hoffner v. Bradshaw, 622
F.3d 487, 501 (6th Cir. 2010). When cases “involve internal factors that affected the jury, rather
than extraneous influences,” Nian v. Warden, N. Cent. Corr. Inst., 994 F.3d 746, 756 (6th Cir.
2021), there is no constitutional impediment to enforcing Rule 606(B), Hoffner, 622 F.3d at 501.
See also Brown v. Bradshaw, 531 F.3d 433, 436, 438 (6th Cir. 2008) (holding a juror’s affidavit
that other jurors bullied her into changing her vote was inadmissible under Ohio law and that
enforcing the rule was constitutional). We have distinguished cases involving the influence of
extraneous information in which Rule 606(B) has been applied unconstitutionally. See Nian, 994
F.3d at 756 (holding that where a case came down to a credibility determination and a juror
introduced extraneous information about the defendant’s criminal record during deliberations,
applying Rule 606(B) to exclude juror testimony was constitutional error); Doan v. Brigano,
237 F.3d 722, 732 (6th Cir. 2001) (holding the state court’s application of Rule 606(B) to
prevent inquiry into a juror’s injection of extraneous evidence conflicted with Supreme Court
No. 20-3069 Mammone v. Jenkins Page 16
precedent recognizing a defendant’s constitutional right to confront the witnesses and evidence
against him), overruled on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003).
A jury’s verdict must be based on the evidence introduced at trial, not extraneous
information. Morgan v. Illinois, 504 U.S. 719, 727 (1992); Smith v. Phillips, 455 U.S. 209, 217
(1982); Thompson v. Parker, 867 F.3d 641, 647 (6th Cir. 2017). But Mammone cites no
Supreme Court precedent holding that prayer by jurors amounts to the influence of extraneous
information. He cites Caldwell v. Mississippi, 472 U.S. 320, 328–29 (1985), for the proposition
that the jury cannot be “led to believe that the responsibility for determining the appropriateness
of the defendant’s death rests elsewhere,” and Sandoval v. Calderon, 241 F.3d 765, 777 (9th Cir.
2000), for the argument that relying on divine authority undercuts the jury’s responsibility for
imposing the death penalty. Both cases involve prosecutorial misconduct and do not address
juror prayer. Neither Caldwell nor Sandoval is applicable, and Sandoval is not Supreme Court
precedent. Mammone has not shown that the state court’s reliance on Rule 606(B) was contrary
to or an unreasonable application of Supreme Court precedent.
C. Whether trial counsel were ineffective.
The district court certified three claims of ineffective assistance of trial counsel: whether
trial counsel were ineffective for failing to raise a defense of not guilty by reason of insanity
(“NGRI”), for failing to retain a neuropsychologist to evaluate Mammone, and for allowing
Mammone to make an unsworn statement at the penalty phase. We expanded the COA to
include an additional claim: whether trial counsel were ineffective for failing to present evidence
that Mammone has autism spectrum disorder. Mammone argues that trial counsel rendered
ineffective assistance by failing to thoroughly investigate his mental-health issues and present a
proper defense based on his mental health conditions. He also argues that the district court
should have granted his request for discovery and an evidentiary hearing. We discuss each claim
in turn, beginning with those that are procedurally defaulted.
No. 20-3069 Mammone v. Jenkins Page 17
1. Whether trial counsel were ineffective for failing to raise a defense of not
guilty by reason of insanity.
The district court held Mammone procedurally defaulted his NGRI claim by failing to
raise it in state court, noting that he had no remaining state-court remedies. The district court
held that “allowing a petitioner periodically to discover (or rediscover) information about himself
would frustrate [AEDPA’s purpose of achieving finality], and could incentivize capital
defendants to deliberately engage in dilatory tactics to prolong their incarceration and avoid
execution of the sentence of death.” Mammone v. Jenkins, No. 5:16CV900, 2019 WL 5067866,
at *34 (N.D. Ohio Oct. 9, 2019) (quoting Carter v. Mitchell, 829 F.3d 455, 467 (6th Cir. 2016)
(cleaned up)). The court also held Mammone could not excuse his default under Martinez v.
Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). It concluded that
Mammone had not shown ineffective assistance of postconviction counsel where his counsel
failed to raise a claim lacking factual support.
Mammone procedurally defaulted his claim that counsel should have pursued the NGRI
defense. Mammone did not raise this claim on direct appeal or in collateral proceedings.
“[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). When a petitioner has failed to present a
claim to the state courts and no state remedy remains available, the claim is technically
exhausted and procedurally defaulted. See id. at 848; Coleman v. Thompson, 501 U.S. 722, 732
(1991); Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir. 2009).
Here, Mammone cannot raise his NGRI claim in either a successive post-conviction
petition under Ohio Revised Code § 2953.23 or a motion for a new trial under Ohio Rule of
Criminal Procedure 33. Ohio law bars successive post-conviction relief petitions “unless the
petitioner was unavoidably prevented from discovering the facts on which he later seeks to rely,
or the United States Supreme Court has recognized a new right that applies retroactively to the
petitioner.” Landrum v. Mitchell, 625 F.3d 905, 919 (6th Cir. 2010) (citing Ohio Rev. Code
§ 2953.23(A)(1)(a)). The petitioner must also “show that, but for the error, no reasonable
factfinder would have found the petitioner guilty, or, in a death penalty case, eligible for the
No. 20-3069 Mammone v. Jenkins Page 18
death sentence.” Id. (citing § 2953.23(A)(1)(b)). A motion for a new trial based on newly
discovered evidence must be filed within 120 days of the verdict unless the defendant was
“unavoidably prevented from discovering the evidence” within that time period. Ohio R. Crim.
P. 33(B).
Mammone was not unavoidably prevented from discovering the basis for his NGRI
defense. The claim relies on his mental status at the times of his offenses and his trial, so he and
his mental-health records are the relevant sources of information. Defense counsel’s expert,
forensic psychologist Jeffrey Smalldon, undertook a comprehensive review of Mammone’s
background and met with him for twenty hours over seven different occasions. As the district
court noted, Dr. Smalldon was a qualified expert with extensive experience in death-penalty
cases who ultimately opined that Mammone was not insane at the time of the crimes and did not
qualify for the not guilty-by-reason-of-insanity defense.
Mammone points to a second opinion he obtained eight years after trial from Diane
Mosnik, a clinical neuropsychologist and forensic psychologist, who took issue with some of Dr.
Smalldon’s diagnoses. Dr. Mosnik’s 2017 opinion is new in the sense that it did not exist at the
time of Mammone’s trial, direct appeal, or post-conviction petition. However, aside from her in-
person evaluation, Dr. Mosnik based her diagnoses on the records of Mammone’s prior
treatment. Dr. Smalldon met with Mammone in preparation for trial, reviewed his history,
administered tests, diagnosed him, and testified that he was sane at time of his crimes. Forensic
psychologist Dr. Robert Stinson evaluated Mammone for his post-conviction proceedings, found
indications of neurological, neurophysiological, and/or neuropsychological deficits, and
recommended that Mammone be evaluated by specialists in those fields. Because Drs. Smalldon
and Stinson were able to assess Mammone in preparation for his state-court proceedings, the
basis for his NGRI claim existed long before he raised it in his habeas petition. Finally,
Mammone does not rely on a new constitutional right made retroactive to him. See
§ 2953.23(A)(1)(a); Landrum, 625 F.3d at 919. He cannot exhaust his claim through a second or
successive post-conviction petition or a motion for a new trial and therefore has no remaining
state-court remedies. See Ohio R. Crim. P. 33(B); Ohio Rev. Code § 2953.23(A)(1).
Mammone’s claim is procedurally defaulted.
No. 20-3069 Mammone v. Jenkins Page 19
Further, Mammone cannot excuse his procedural default through Martinez and Trevino.
In Martinez, the Court held that “a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. at 17.
A substantial claim is one that has some merit. Id. at 14. The Court extended this rule to Texas
in Trevino, holding that where a state’s “procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a defendant will have a meaningful
opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal,” procedural
default is excused. 569 U.S. at 428–29.
We have not yet decided whether Trevino and Martinez apply to Ohio cases generally.
See Henness v. Bagley, 766 F.3d 550, 557 (6th Cir. 2014). “[T]he application of Trevino to Ohio
ineffective-assistance claims is neither obvious nor inevitable.” McGuire v. Warden, 738 F.3d
741, 752 (6th Cir. 2013). This is because Ohio law provides for two kinds of ineffective-
assistance-of-trial-counsel claims: ineffective-assistance-of-trial-counsel claims that do not
depend on evidence outside the record must be brought on direct appeal, while claims that rely
on evidence outside the record are raised in post-conviction petitions. Id. at 751–52. In
McGuire, we found that the reasons for excusing default under Trevino applied weakly at best
because the Ohio Supreme Court addressed the petitioner’s claim of ineffective assistance of trial
counsel when he alleged that counsel should have raised it on direct appeal. See id. at 752. We
held that, even if Trevino applied, the petitioner’s claim was not substantial. Id. In an earlier
case, we held that Martinez could not excuse the petitioner’s alleged default because he was
permitted to, and did, raise his ineffective-assistance-of trial-counsel-claim on direct appeal.
Moore v. Mitchell, 708 F.3d 760, 785 (6th Cir. 2013).
Mammone argues that we applied Trevino to an Ohio habeas case in White v. Warden,
940 F.3d 270 (6th Cir. 2019), cert. denied, 140 S. Ct. 2826 (2020). In White, the petitioner
raised a claim of ineffective assistance of trial counsel on direct appeal. 940 F.3d at 274. The
Ohio Court of Appeals denied it because the trial court record lacked the facts necessary to fully
consider it. Id. By the time the petitioner’s direct appeal ended, it was too late for him to raise
his claim in post-conviction proceedings. His pro se post-conviction petition was dismissed as
No. 20-3069 Mammone v. Jenkins Page 20
untimely. Id. This court held that Martinez and Trevino provided cause to excuse the
petitioner’s procedural default because he raised a substantial claim of ineffective assistance of
trial counsel, he did not have counsel in post-conviction proceedings, those proceedings were his
first opportunity for a merits review of his claim, and Ohio law made it unlikely that his claim
could have been reviewed on direct appeal. Id. at 278. The court remanded the case to the
district court for de novo review and the possibility of an evidentiary hearing. Id. (citing Detrich
v. Ryan, 740 F.3d 1237, 1247 (9th Cir. 2013) (en banc) for the proposition that a petitioner who
demonstrated cause under Martinez was entitled to an evidentiary hearing notwithstanding
§ 2254(e)(2)). White illustrates that Martinez and Trevino can apply in an Ohio case, but it does
not show that they apply to Ohio cases generally. See Henness, 766 F.3d at 557.
We need not resolve the issue conclusively because, even if Martinez and Trevino are
relevant here, Mammone would still have to show that his post-conviction counsel were
ineffective for failing to raise the NGRI claim and that the claim is substantial. See Martinez,
566 U.S. at 16. Mammone cannot excuse his default because the claim is not substantial. See id.To prevail on a claim of ineffective assistance, a petitioner must show both that his
counsel’s performance was deficient and that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient if it
falls below an objective standard of reasonableness. Bobby v. Van Hook, 558 U.S. 4, 7 (2009).
“Even under de novo review, the standard for judging counsel’s representation is a most
deferential one.” Richter, 562 U.S. at 105. The defendant must overcome the presumption that
his counsel’s actions were sound strategy. Pinholster, 563 U.S. at 189; Strickland, 466 U.S. at
689. Counsel’s failure to explore an NGRI defense can amount to ineffective assistance. See
Lundgren v. Mitchell, 440 F.3d 754, 771 (6th Cir. 2006). Counsel in a death-penalty case have a
duty to reasonably investigate the defendant’s background and present mitigating evidence to the
jury. Wiggins v. Smith, 539 U.S. 510, 521–22 (2003); Goodwin v. Johnson, 632 F.3d 301, 318
(6th Cir. 2011). Counsel’s performance prejudices a defendant in the guilt phase if “there is a
reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt
respecting guilt.” Hinton v. Alabama, 571 U.S. 263, 275 (2014) (per curiam) (quoting
Strickland, 466 U.S. at 695). To assess potential prejudice at sentencing, we reweigh the
No. 20-3069 Mammone v. Jenkins Page 21
evidence in aggravation against the total available mitigating evidence to determine whether a
reasonable probability exists that the defendant would have received a sentence less than death
had counsel not erred. Wiggins, 539 U.S. at 534-6; Strickland, 466 U.S. at 695. The petitioner
must present new evidence that differs both in strength and subject matter from the evidence
presented at sentencing, not just cumulative mitigation evidence. Jackson v. Bradshaw, 681 F.3d
753, 770–71 (6th Cir. 2012); Phillips v. Bradshaw, 607 F.3d 199, 216 (6th Cir. 2010). We need
not address both performance and prejudice if the defendant does not make a sufficient showing
of one. Strickland, 466 U.S. at 697.
Mammone’s underlying claim that trial counsel should have pursued a defense of NGRI
is not substantial because he cannot overcome the presumption that his trial counsel’s actions
were strategic. See Burt v. Titlow, 571 U.S. 12, 23 (2013); Strickland, 466 U.S. at 689.
Mammone’s claim is based on Dr. Mosnik’s opinion, in which she diagnosed him as having
major depressive disorder with anxious distress, psychotic features, and autism spectrum
disorder. She opined that Mammone did not know the wrongfulness of his acts as the result of
serious mental disease. Dr. Mosnik criticized Dr. Smalldon’s understanding of Ohio’s insanity
defense. According to Dr. Mosnik, Dr. Smalldon testified that Mammone knew the difference
between right and wrong, but the proper question was whether he knew the wrongfulness of his
acts.
Ohio’s insanity defense requires the defendant to prove that at the time of the offense, he
did not know, as a result of a severe mental disease or defect, the wrongfulness of his acts. Ohio
Rev. Code § 2901.01(A)(14). NGRI is an affirmative defense that the defendant must prove by a
preponderance of the evidence. See § 2901.05(A); State v. Hancock, 840 N.E.2d 1032, 1043
(Ohio 2006). The jury determines what weight to give the evidence, the credibility of the
witnesses, and whether the defendant is insane. State v. Thomas, 434 N.E.2d 1356, 1357–58
(Ohio 1982). The term “wrongfulness” applies to legal, not moral, wrongs. “[A] defendant who
knows his actions are against the law but acts under a command from God understands the
‘wrongfulness’ of his actions under [Ohio Revised Code §] 2901.01(A)(14).” State v. Carreiro,
988 N.E.2d 21, 27 (Ohio Ct. App. 2013). Ohio courts have described the test for insanity as
whether the defendant knew right from wrong. See id. at 27 (holding the defendant was not
No. 20-3069 Mammone v. Jenkins Page 22
entitled to jury instructions on NGRI because “[i]nstead of acting pursuant to a command from
God, [he] was able to appreciate the difference between right and wrong and simply chose to
transgress these boundaries”); State v. Taylor, 781 N.E.2d 72, 86 (Ohio 2002) (“Appellant was
not insane and understood right from wrong.”); State v. Reynolds, 89 N.E.3d 235, 244 (Ohio Ct.
App. 2017) (“Reynolds’ ‘goal oriented’ behavior indicates that he appreciated right from
wrong.”)
Dr. Smalldon testified at sentencing that, at the time of the murders, Mammone was
under extreme emotional distress and suffered from a severe mental disorder but knew the
difference between right and wrong and knew his acts were illegal. Dr. Smalldon opined that
Mammone “was able to know the difference between right and wrong at the time these offenses
were committed.” DE 11-6, Tr., Page ID 6047. Dr. Smalldon testified that Mammone knew his
acts were “wrong in the eyes of the law” and that Mammone knew “his conduct on this night was
criminal.” Id. at 6047, 6068. Mammone justified killing his children by saying that it was the
correct thing to do to restore them to their purity. However, his religious justification neither
negates his knowledge that he broke the law nor means that he did not understand the
wrongfulness of his actions. See § 2901.01(A)(14); Carreiro, 988 N.E.2d at 27.
Mammone has not shown that his trial counsel performed deficiently. Trial counsel had
him examined by an experienced and well-qualified mental health expert who concluded
Mammone knew that his acts were wrong and illegal. Dr. Smalldon’s understanding of the
insanity defense was consistent with Ohio law. See Carreiro, 988 N.E.2d at 27; Taylor, 781
N.E.2d at 86. Mammone has presented no evidence that Dr. Smalldon was incompetent or
unqualified, so counsel reasonably relied on his opinion when they chose not to pursue the NGRI
defense. See Hinton, 571 U.S. at 275; McGuire, 738 F.3d at 758; Hodges v. Colson, 727 F.3d
517, 545 (6th Cir. 2013). Even assuming we could consider her testimony, but see Shinn v.
Ramirez, 142 S. Ct. 1718, 1734 (2022) (“[A] federal habeas court may not … consider evidence
beyond the state-court record based on ineffective assistance of state postconviction counsel.”);
see also Shoop v. Twyford, 142 S. Ct. 2037, 2044 (2022) (discussing the “quite limited
situations” in which a federal court can consider new evidence in a § 2254 proceeding),
Dr. Mosnik’s opinion does not show ineffectiveness of trial counsel. See McGuire, 738 F.3d at
No. 20-3069 Mammone v. Jenkins Page 23
758. In Lundgren, for example, the defendant stated he killed four members of his religious cult
at God’s command. 440 F.3d at 761. Defense counsel retained two mental health experts, who
concluded that the defendant was not insane. Id. at 773. In post-conviction proceedings, a third
expert1 opined the defendant should have been seen as eligible for the NGRI defense. Id. at 772.
This court held trial counsel reasonably investigated the defendant’s mental state and their
decision not to pursue an insanity defense was reasonable. Id. “The question before this Court
. . . is not whether all mental health experts would agree on whether the defense was viable, but
whether counsel’s decision not to pursue the defense was a reasonable strategic choice.” Id.; see
also Morris v. Carpenter, 802 F.3d 825, 841 (6th Cir. 2015) (holding counsel reasonably relied
on their experts when they chose not to pursue an insanity defense); Wong v. Money, 142 F.3d
313, 320 (6th Cir. 1998) (same). As in Lundgren, Mammone’s counsel performed reasonably
when they investigated his mental state, relied on their experts’ opinions, and made the strategic
choice not to pursue an NGRI defense.
In sum, Mammone’s claim that counsel should have pursued the NGRI defense is
procedurally defaulted. Even if applicable, Martinez and Trevino cannot excuse this procedural
default of claims through ineffective assistance of post-conviction counsel because the
underlying claims of ineffective assistance of trial counsel are not substantial.
2. Whether trial counsel were ineffective for failing to present evidence that
Mammone has autism spectrum disorder.
Mammone did not present his autism spectrum disorder claim on direct appeal or in his
post-conviction petition, raising it for the first time in his habeas petition. The district court held
that Mammone procedurally defaulted this claim by failing to raise it in state court, that he had
no remaining state court remedies, and that he could not excuse his default under Martinez and
Trevino.
Mammone procedurally defaulted his claim that counsel should have presented evidence
he suffers from autism spectrum disorder. Mammone did not raise this claim on direct appeal or
1This expert was Dr. Smalldon. Lundgren, 440 F.3d at 772 (“Petitioner submits an affidavit of Ph.D.
psychologist Jeffrey Smalldon who opines that [he] ‘should have been seen as eligible . . . for a defense of not guilty
by reason of insanity.’”).
No. 20-3069 Mammone v. Jenkins Page 24
in collateral proceedings. Mammone cannot raise his autism-spectrum-disorder claim in either a
successive post-conviction petition under Ohio Revised Code § 2953.23 or a motion for a new
trial under Ohio Rule of Criminal Procedure 33. He was not unavoidably prevented from
discovering the basis for this claim, as it relies on his mental status at the times of his offenses
and his trial. Dr. Mosnik’s diagnoses are based on the records of Mammone’s prior treatment, so
the basis for his autism-spectrum-disorder claim existed before he raised it in his habeas petition.
Mammone does not rely on a new constitutional right made retroactive to him. See
§ 2953.23(A)(1)(a); Landrum, 625 F.3d at 919. Mammone’s claim is procedurally defaulted.
Even if Martinez and Trevino apply, Mammone cannot excuse his default because his
claim that post-conviction counsel were ineffective for failing to raise the autism spectrum
disorder claim is not substantial. See Martinez, 566 U.S. at 16. Mammone presented no
evidence that his counsel erred by retaining Dr. Smalldon to evaluate him or by relying on Dr.
Smalldon’s opinion of Mammone’s mental status. Mammone now relies on Dr. Mosnik’s 2017
diagnosis that he has autism spectrum disorder. He argues that evidence of autism spectrum
disorder would have given the jury context for his rigid demeanor during trial and his five-hour
unsworn statement and would have provided mitigating evidence for the jury to consider. But
selecting an expert is the classic example of a strategic choice made by counsel. Hinton,
571 U.S. at 275 (quoting Strickland, 466 U.S. at 690).
Attorneys are entitled to rely on the opinions and conclusions of a mental health expert
unless they have good reason to believe the expert is incompetent or unqualified. Morris, 802
F.3d at 841; McGuire, 738 F.3d at 758; Hodges v. Colson, 727 F.3d 517, 545 (6th Cir. 2013). In
Morris, defense counsel presented experts to testify about the effects of cocaine and alcohol to
argue that the defendant lacked the requisite intent for first-degree murder. 802 F.3d at 841.
They chose not to pursue an insanity defense because no expert found that the defendant was
mentally ill. In post-conviction proceedings, however, the defendant’s expert witnesses testified
that the defendant was bipolar. We held that defense counsel reasonably relied on their expert
witnesses’ testimony. Morris, 802 F.3d at 841-42. “[S]imply introducing the contrary opinion
of another mental health expert during habeas review is not sufficient to demonstrate the
No. 20-3069 Mammone v. Jenkins Page 25
ineffectiveness of trial counsel.” McGuire, 738 F.3d at 758; see also Pike v. Gross, 936 F.3d
372, 381 (6th Cir. 2019); Hill v. Mitchell, 842 F.3d 910, 944 (6th Cir. 2016).
Mammone’s trial counsel retained Dr. Smalldon to examine him and testify on his behalf.
Dr. Smalldon diagnosed Mammone with a severe personality disorder, unspecified, with
schizotypal, borderline, and narcissistic features. Dr. Stinson, who evaluated Mammone for
post-conviction proceedings, agreed with Dr. Smalldon’s diagnosis but opined that Mammone
should have been tested for neurological, neurophysiological, and/or neuropsychological deficits.
None of the mental health experts who treated or evaluated Mammone before 2017 suggested
that he had autism spectrum disorder. Mammone does not suggest that Dr. Smalldon was
incompetent or unqualified, so counsel reasonably relied on his opinions. See Morris, 802 F.3d
at 841; McGuire, 738 F.3d at 758; Hodges, 727 F.3d at 545. Trial counsel’s selection of Dr.
Smalldon was a strategic choice and virtually unchallengeable. See Hinton, 571 U.S. at 275. Dr.
Mosnik’s different diagnosis does not show that trial counsel were ineffective. See Pike, 936
F.3d at 381; Hill, 842 F.3d at 944; McGuire, 738 F.3d at 758. Mammone cannot show that his
counsel performed deficiently by relying on Dr. Smalldon and failing to discover evidence to
support a diagnosis of autism spectrum disorder. Because Mammone cannot establish deficient
performance, we need not consider prejudice. See Strickland, 466 U.S. at 697; Hutton, 839 F.3d
at 501.
Mammone’s claim that counsel should have presented evidence that he had autism
spectrum disorder is procedurally defaulted. Even if applicable, Martinez and Trevino cannot
excuse this procedural default because the underlying claim of ineffective assistance of trial
counsel is not substantial.
3. Whether trial counsel were ineffective for failing to retain a
neuropsychologist to evaluate Mammone.
In his state court post-conviction proceedings, Mammone alleged his trial counsel were
ineffective for failing to retain a neuropsychologist and failing to request neuroimaging. In
support, he submitted an affidavit by Dr. Stinson recommending that Mammone be evaluated by
specialists in neurology, neurophysiology, and neuropsychology to look for brain dysfunction,
neurological insults, and neuropsychological deficits. Mammone requested funding for such
No. 20-3069 Mammone v. Jenkins Page 26
testing. The trial court denied Mammone’s request for funding and denied his petition, and the
Ohio Court of Appeals affirmed. DE 10-22, J. Entry, Page ID 2419–20; Mammone, 2012 WL
3200685, at *2–3.
Before trial, the trial court appointed forensic psychologist Dr. Smalldon at Mammone’s
request. Dr. Smalldon testified he had done neuropsychological assessments for neurologists,
neurosurgeons, and other specialists. He met with Mammone for approximately twenty hours,
administered numerous tests, reviewed extensive records, and conducted third-party interviews.
He diagnosed Mammone with a severe personality disorder, not otherwise specified, with
schizotypal, borderline, and narcissistic features. Dr. Smalldon found that Mammone was not
actively psychotic but had characteristics of people who were psychotic. He also noted that
Mammone exhibited passive aggressive and obsessive compulsive personality traits and
generalized anxiety disorder. Dr. Smalldon found no indication of a brain disorder or brain
damage. The Ohio Court of Appeals held that the trial court did not err in rejecting Dr. Stinson’s
affidavit and denying Mammone’s claim:
In his affidavit, Dr. Stinson, who possesses the same credentials as Dr. Smalldon,
advanced the opposite opinion. We fail to see that the presence of a contradicting
opinion by one who never interviewed appellant would result in any affirmative
help to appellant’s case. The affidavit is only an offer of a contradicting opinion
and not definitive evidence on the issue.
Mammone, 2012 WL 3200685, at *2–3. The district court agreed with the state court that
Mammone’s counsel performed reasonably when they relied on Dr. Smalldon’s opinion that
Mammone did not show signs of neurological damage.
On appeal, Mammone argues that trial counsel were ineffective for failing to have him
examined by a neuropsychologist. He asserts that “trial counsel’s failure to obtain a
neuropsychologist to evaluate [him] and testify regarding his deficits deprived the jurors of
significant mitigating evidence.” CA6 R. 25, Appellant Br., at 11. This claim is subject to
AEDPA review because the Ohio Court of Appeals denied it on the merits. Mammone, 2012
WL 3200685, at *2. When AEDPA review applies to a claim of ineffective assistance of
counsel, our review of the state court decision is “doubly deferential” and gives both the state
court and defense counsel the benefit of the doubt. Titlow, 571 U.S. at 15 (citation omitted);
No. 20-3069 Mammone v. Jenkins Page 27
Pinholster, 563 U.S. at 190. “A federal court may grant relief only if every ‘fairminded jurist’
would agree that every reasonable lawyer would have made a different decision.” Dunn v.
Reeves, 141 S. Ct. 2405, 2411 (2021) (per curiam) (cleaned up) (quoting Richter, 562 U.S. at
101). “When § 2254(d) applies, the question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Richter, 562 U.S. at 105. Mammone must meet his burden on the record
that was before the Ohio Supreme Court. See Pinholster, 563 U.S. at 181–82.
There is a reasonable argument that Mammone’s counsel satisfied Strickland’s
deferential standard. See Richter, 562 U.S. at 105. Counsel retained a psychologist,
Dr. Smalldon, who performed neuropsychological screening tests on Mammone. Although Dr.
Smalldon is a psychologist, not a neuropsychologist, he is highly experienced with capital cases
and has performed “neuropsychological assessments” for neurologists, neurosurgeons, and other
specialists. The trial court deemed him qualified as an expert in forensic psychology.
Dr. Smalldon testified that because Mammone had sustained a head injury as a teenager, he
screened Mammone for brain damage. He met with Mammone for approximately twenty hours,
administered numerous tests, reviewed extensive records, and conducted third-party interviews.
That Dr. Smalldon screened Mammone for brain damage indicates that the issue of potential
neurological deficits was a focus of the defense. Mammone has not pointed to any evidence that
Dr. Smalldon was incompetent or unqualified. It was not unreasonable for Mammone’s counsel
to rely on Dr. Smalldon’s opinion that Mammone did not exhibit signs of neurological damage.
That Dr. Stinson opined in an affidavit that Mammone may have had a brain impairment does
not make counsel’s performance deficient. The Ohio Court of Appeals reasonably concluded
that Mammone suffered no prejudice.
4. Whether trial counsel were ineffective for allowing Mammone to make an
unsworn statement at the penalty phase or failing to prepare him to give
a more effective statement.
On direct appeal, Mammone argued his counsel failed to prepare him for the mitigation
phase of trial and should not have allowed him to make a five-hour unsworn statement without
guiding or limiting his presentation by asking questions.
No. 20-3069 Mammone v. Jenkins Page 28
The Ohio Supreme Court held Mammone could not show ineffective assistance of
counsel because he, not his counsel, had the choice of testifying or giving a statement.
Mammone, 13 N.E.3d at 1088. It also found the decision was a tactical one. Id. The court
acknowledged that Mammone’s statement was lengthy but described it in favorable terms:
Mammone’s statement was well spoken, coherent, and organized. For the most
part, the statement amplified the confession Mammone had made to police
officers the day he was arrested and gave the jury an opportunity to observe his
personality and learn more about his background. Moreover, because the court
permitted Dr. Smalldon to observe the statement, Dr. Smalldon was able to refer
to it during his own testimony. Under the circumstances, to the extent that trial
counsel may have influenced Mammone’s decision to give an unsworn statement,
allowing the statement was objectively reasonable as a matter of strategy.
Mammone, 13 N.E.3d at 1088 (citing State v. Jalowiec, 744 N.E.2d 163 (Ohio 2001)). The Ohio
Supreme Court further held that even if trial counsel performed deficiently, Mammone was not
prejudiced. Id. at 1088–89. Mammone argued his statement was harmful because it was long,
cold, and detached, and because the jury had no context to connect it to his mental illness. Id. at
1089. The court found Mammone could not show a reasonable likelihood of a life sentence but
for his unsworn statement because, for the most part, it amplified his confession to the police,
which was played for the jury. Id. at 1088–89.
The district court found the Ohio Supreme Court’s decision objectively reasonable. It
noted the record was devoid of evidence that counsel failed to prepare Mammone and that “even
if Mammone had given a more controlled statement (or none at all), there was simply no
probability of the jury’s recommending anything but a death sentence.” Mammone, 2012 WL
5067866, at *53.
On appeal, Mammone argues that trial counsel were ineffective for “abandon[ing]” him
when he made the five-hour unsworn statement. CA6 R. 25, Appellant Br., at 40–43. He asserts
trial counsel did not guide or limit his statement and “failed to present to the jury a context
within which to interpret the unsworn statement.” Id. at 41. This claim is subject to AEDPA
review because the Ohio Supreme Court denied it on the merits. Mammone, 13 N.E.3d at 1088–
89. Therefore, our review gives both the state court and defense counsel the benefit of the doubt.
Pinholster, 563 U.S. at 190.
No. 20-3069 Mammone v. Jenkins Page 29
Ohio law grants a capital defendant the right to make an unsworn statement at the penalty
stage that is not subject to cross-examination. Ohio Rev. Code § 2929.03(D)(1). At the close of
the prosecution’s guilt-phase case, Mammone acknowledged on the record that his trial counsel
had discussed the possibility of Mammone’s giving an unsworn statement in the sentencing
phase. The sentencing transcript refers to Mammone’s decision to do so. Mammone did not
present evidence from outside the trial court record because he raised this claim on direct appeal.
See McGuire, 738 F.3d at 751–52. There is no indication in the record of what advice or
preparation Mammone’s counsel provided. When a petitioner does not present evidence in state
court to support a claim of ineffective assistance, he has not rebutted the presumption that
counsel had a reasonable strategy for the challenged decision. Dunn, 141 S. Ct. at 2412; see also
Titlow, 571 U.S. at 23 (“[T]he absence of evidence cannot overcome the ‘strong presumption
that counsel’s conduct [fell] within the wide range of reasonable professional assistance.’”
(citation omitted)); Carter v. Mitchell, 443 F.3d 517, 531 (6th Cir. 2006) (holding petitioner’s
failure to detail trial counsel’s efforts to learn of his background provided no basis for finding
counsel’s investigation unreasonable). Regardless of whether the defendant has presented
evidence of counsel’s strategy, the court can consider possible reasons for counsel’s decisions
not expressed by counsel. See Pinholster, 563 U.S. at 196.
There is a reasonable argument that counsel’s performance satisfied the doubly
deferential standard of Strickland under AEDPA review. See Richter, 562 U.S. at 105.
Mammone cannot point to any evidence that counsel failed to advise him of the possible risks of
giving an unsworn statement or that they did not prepare him adequately. His counsel may have
simply respected his statutory right to give an unsworn statement. Or they may have reasoned
Mammone’s unsworn statement would allow the jurors to hear about his background and beliefs
directly from him and lead them to conclude that he was so disturbed that he should not be
sentenced to death. In closing argument, Mammone’s counsel reminded the jury that Mammone
had told them about his bizarre set of rigid behavioral codes. She concluded by telling the jurors
that sentencing was about the appropriate sentence for a person with “such a degree of . . .
craziness.” DE 11-6, Tr., Page ID 6158–59. Counsel may also have decided that Mammone’s
unsworn statement would give Dr. Smalldon the opportunity to comment on it, as he did. Dr.
Smalldon testified that watching Mammone’s unsworn statement did not change his diagnosis.
No. 20-3069 Mammone v. Jenkins Page 30
In the absence of evidence to the contrary, Mammone has not rebutted the presumption that
counsel performed reasonably when they acceded to his decision to give his unsworn statement.
See Dunn, 141 S. Ct. at 2412; Titlow, 571 U.S. at 23. The Ohio Supreme Court decided
reasonably that Mammone did not show deficient performance.
Even if counsel for Mammone performed unreasonably, he cannot show prejudice.
Mammone argued to the Ohio Supreme Court that his unsworn statement was long, cold, and
detached, and the jury had no context to connect it to his mental illness. Mammone, 13 N.E.3d at
1089. The Ohio Supreme Court held Mammone could not show a reasonable likelihood of a life
sentence but for his unsworn statement because, for the most part, it amplified his confession to
the police. Id. at 1088–89. This, too, was a reasonable decision. Mammone’s unsworn
statement was similar to his confession introduced at trial, included mitigating evidence, and
revealed the idiosyncratic nature of his beliefs. An examination of Mammone’s confession and
his unsworn statement confirms that Mammone was not prejudiced by his counsel’s decision to
let him give his unsworn statement.
Mammone’s confession to the police began with the night before the murders. He
described trying to find Marcia, texting her, and getting to the “point of no return” because he
could not accept her being with another man. Mammone, 13 N.E.3d at 1063. He gave detailed
descriptions of how he killed his children and his former mother-in-law. Mammone seemingly
prepared for suicide by cop, but he also tried to avoid being injured or caught. When he broke
into Marcia’s house, he did not go upstairs because he thought Marcia or the man Mammone
believed was with her might be armed. Mammone told the police he had thought about “doing
this” for twenty-two months since Marcia first tried to leave him. Id. at 1064. He originally
intended to kill Marcia, not the children, and said he killed Marcia’s mother to punish Marcia.
On the night of the killings, he had intended to maim Marcia, not kill her. He wanted to beat her
with a weapon in such a way that she could not have any more children, break her ankles
because he knew she feared that injury, and cut out her tongue because she would not talk to
him.
Mammone’s unsworn statement conveyed much of the same information as his
confession, but also included mitigating facts and permitted Mammone to explain his family
No. 20-3069 Mammone v. Jenkins Page 31
background and his beliefs about marriage, children, and religion. Mammone, 13 N.E.3d at
1093–96; DE 11-6, Tr., Page ID 5725–5979. He detailed his father’s alcoholism and physical
abuse, his parents’ divorce, and his mother’s depression. Mammone thought his family was not
the way families should be. Mammone described his relationship to Marcia, stating that when he
met her, she shared his views about commitment and God and that he went to church with her
and her family. Mammone’s account of the collapse of his marriage and his reaction focused on
the importance of family and religion. In at least two instances, Mammone threatened to kill
Marcia and the children if she left him because he would rather they be dead with God than be
raised in a broken home. Mammone’s feelings about Marcia were conflicted, and his own
thoughts disturbed him. He told the jury he believed that everything is the will of God, and that
God did not permit him to hurt Marcia.
Next, Mammone described the events of June 7 and 8 from his perspective. The
testimony was largely consistent with his confession, but Mammone described his motives
differently. He emphasized his frustration with Marcia and her family’s refusal to respond to his
concerns about the children. Mammone recounted the manner in which he killed his children,
stating he killed them in the parking lot of the church where they were baptized because he “was
put there to send them back to be with God.” DE 11-6, Tr., Page ID 5933. He said he was
“completely stunned by the whole thing,” prayed after killing them, and felt a surge of
aggression when he saw his children deceased. Id. at 5937–38. He stated “what happened to the
children was one thing that [he] felt was necessary to happen” but that the events that followed
were “something completely different.” Id. at 5938. After detailing how he killed his mother-in-
law, Mammone said he felt for a couple of minutes that he had turned his back on his beliefs and
what “was right and wrong with God.” Id. at 5941–46. He was shocked that his children were in
fact dead and that “this actually had happened.” Id. at 5946.
When he broke into Marcia’s apartment, his aggression was gone, and he felt “a
combination of remorse and disbelief.” Id. at 5948. He left a voicemail for Marcia after leaving
her apartment informing her he had killed her mother and said he had been trying to get
everyone’s attention for months. Mammone felt God intervened and kept him from hurting
Marcia, and he was grateful for that. He had “definitely intended” to harm Marcia in the ways he
No. 20-3069 Mammone v. Jenkins Page 32
later confessed to the police, but he told the jury he doubted he could have actually hurt her. Id.
at 5957. Mammone hoped the jurors could wrap their heads around what happened and what he
went through. He thought he was a “great guy” but ended up as a “raving lunatic” who killed
people. Id. at 5965–66.
The final part of Mammone’s unsworn statement to the jury had religious themes. He
said he wanted to turn himself in with as much discretion as possible because he did not want
anyone to see the children. He was not worried about the legal ramifications. Mammone told
the jury he had planned on dying but felt responsible for handing the children over properly. He
feels a spiritual connection with his children and his former mother-in-law. Mammone stated
that he hoped that his children’s lives were not in vain, and that people would be outraged by
what happened because he did not want to see it happen to anyone else. He hoped people would
commit themselves to God, take care of their children, and learn from this tragedy.
Mammone did not show a reasonable probability that the jury would have spared him the
death penalty if counsel had not allowed him to give his unsworn statement, had better prepared
him for it, or had limited its length. See Wiggins, 539 U.S. at 536–37; Strickland, 466 U.S. at
695. As the Ohio Supreme Court found, his statement mirrored his confession. Both described
the murders in detail, and the transcripts do not suggest that Mammone showed emotion or regret
in either one. In addition, Mammone’s unsworn statement may have had some mitigating value.
It placed his actions in the context of his childhood, his religious beliefs, and his views of
marriage and family. The jury could have found his account of the abuse he suffered as a child
and the effects of his parents’ divorce to be mitigating. Mammone told the jury about the
importance he placed on religion, marriage, and family and the torment he felt from the breakup
with Marcia. Dr. Smalldon testified about Mammone’s beliefs and psychological disorder, and
trial counsel referred to his “craziness” in closing argument.
Mammone’s unsworn statement downplayed the role of jealousy and revenge as motives,
focusing instead on his religious views. In his confession, the suspicion that Marcia had a
boyfriend appeared to have set him off and he told police he committed the murders to hurt her.
Mammone, 13 N.E.3d at 1063–64. By contrast, in his unsworn statement, Mammone focused on
his frustration with the break-up of his marriage and his belief that his children were better off
No. 20-3069 Mammone v. Jenkins Page 33
dead than growing up in a broken home. Id. at 1094. It is not obvious that Mammone’s unsworn
statement made him appear more culpable than his confession, and his statement may have been
more consistent with trial counsel’s argument that he was seriously mentally ill. As indicated
above, the evidence in aggravation significantly outweighed the mitigating evidence. There is
not a reasonable probability that his unsworn statement was so much more inflammatory than his
confession that it swayed the jury to vote for the death penalty. The Ohio Supreme Court’s
conclusion on this issue was reasonable.
5. Whether the district court improperly denied Mammone’s request for
discovery and an evidentiary hearing.
Additionally, Mammone argues the district court abused its discretion when it denied him
discovery and an evidentiary hearing on his claims of ineffective assistance of trial counsel. He
contends the district court was required to grant his requests to depose trial counsel, post-
conviction counsel, and Dr. Smalldon, and consider any new evidence from those depositions.
The district court did not grant a COA on this issue, nor has Mammone requested one. Citing a
single unpublished case, the respondent maintains that the lack of a COA deprives us of
jurisdiction to consider the argument. CA6 R. 26, Appellee Br., at 42 (citing Onunwor v. Moore,
655 F. App’x 369, 375-76 (6th Cir. 2016)).
The petitioner need not obtain a separate COA to challenge discovery rulings that directly
relate to an issue on which he did obtain permission to appeal. 28 U.S.C. § 2253(c)(2) requires
COAs to issue upon a “substantial showing of the denial of a constitutional right.” The COA
must identify “which specific issue” satisfies the requirement imposed by § 2253(c)(2). Id. at
§ 2253(c)(3). Put another way, the only specificity requirement for COA concerns identifying
which issues implicate a “denial of a constitutional right.” Nothing in the statute suggests
subsidiary questions—such as the right to obtain discovery to support a particular constitutional
claim—need to be the subject of a separate certificate. See Johnson v. Bauman, 27 F.4th 384,
391 (6th Cir. 2022) (recognizing “[o]ur obligation to apply statutory text in accordance with its
common meaning,” particularly in the “federal habeas setting, where Congress has long had
primary authority”). This view accords with our sister circuits. See Buntion v. Lumpkin, 982
F.3d 945, 952, n.† (5th Cir. 2020) (per curiam) (“‘[A] request for an evidentiary hearing stands
No. 20-3069 Mammone v. Jenkins Page 34
or falls with the applicant’s COA showing’ on the constitutional merits”) (citing United States v.
Davis, 971 F.3d 524, 534 (5th Cir. 2020)); Cunningham v. United States, 378 F. App’x 955, 959
n.2 (11th Cir. 2010) (concluding that whether a petitioner is entitled to an evidentiary hearing is a
“subsidiary question” of the one included in the COA) (citing Gomez-Diaz v. United States,433
F.3d 788, 790, 794 (11th Cir. 2005)); Jones v. Smith, 231 F.3d 1227, 1231 (9th Cir. 2000)
(“[W]here a district court grants a COA with respect to the merits of a constitutional claim … we
will assume that the COA also encompasses any procedural claims that must be addressed on
appeal.”).
While we possess jurisdiction over Mammone’s requests for discovery and an evidentiary
hearing, his requests are nonetheless meritless. As the Supreme Court recently recognized,
AEDPA “restricts the ability of a federal habeas court to develop and consider new evidence.”
Shoop, 142 S. Ct. at 2043. Specifically, the statute allows the development of new evidence in
“two quite limited situations”: (1) when the claim relies on a “new” and “previously unavailable”
“rule of constitutional law” made retroactive by the Supreme Court, or (2) when the claim relies
on a “factual predicate that could not have been previously discovered through the exercise of
due diligence.” Id. at 2044 (quoting 28 U.S.C. § 2254(e)(2)). And even if a prisoner can satisfy
either of those exceptions, to obtain an evidentiary hearing, he still must show by “clear and
convincing evidence” that “no reasonable factfinder” would have convicted him of the crime
charged. Shinn, 142 S. Ct. at 1734 (quoting 28 U.S.C. § 2245(e)(2)(A)(i), (ii)). Mammone does
not purport to satisfy any of these stringent requirements for obtaining discovery or an
evidentiary hearing: he does not rely on a new rule of constitutional law, he does not contend that
the factual predicate for his constitutional claims could not have been previously discovered, and
he points to no clear and convincing evidence that would cast doubt on the jury’s verdict. The
district court did not abuse its discretion in denying an evidentiary hearing as to Mammone’s
ineffective-assistance-of-counsel claims.
D. Whether appellate counsel was ineffective for not arguing that trial counsel
were ineffective.
Mammone claims he was denied effective assistance of counsel when his appellate
counsel failed to argue that his trial counsel were ineffective for arguing his mitigation case
No. 20-3069 Mammone v. Jenkins Page 35
under the wrong legal standard. During closing arguments, trial counsel asserted that Dr.
Smalldon’s testimony about Mammone’s mental state constituted a statutory mitigating factor
under Ohio Revised Code § 2929.04(B)(3). That provision, however, applies only when the
defendant, at the time of committing the offense, lacks the substantial capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of the law because of a
mental disease or defect. Ohio Rev. Code § 2929.04(B)(3). The prosecution pointed out that Dr.
Smalldon’s testimony did not support concluding that Mammone met the provisions of the
statute. Mammone contends that by erroneously telling the jurors to consider Dr. Smalldon’s
testimony under § 2929.04(B)(3), counsel foreclosed the jurors from considering the testimony
under § 2929.04(B)(7). Section 2929.04(B)(7) is a catch-all provision that requires the factfinder
to consider “[a]ny other factors that are relevant to the issue of whether the offender should be
sentenced to death.” Ohio Rev. Code § 2929.04(B)(7).
Mammone raised this claim in his motion to reopen his direct appeal. The Ohio Supreme
Court denied it without opinion. The district court concluded Mammone’s trial counsel erred by
telling the jury to consider Mammone’s mental state under § 2929.04(B)(3) but held that Mammone
was not prejudiced. It found the aggravating circumstances of the murders and the course-of-conduct
evidence was overwhelming, while Mammone’s mitigating evidence was “hardly compelling.”
Mammone, 2019 WL 5067866, at *64. The district court noted that because the trial court instructed
the jury about the catch-all provision, the jury could have given Mammone’s mental state whatever
weight it deemed appropriate. It concluded that the Ohio Supreme Court’s decision was reasonable
because there was not a reasonable probability that the result of Mammone’s appeal would have been
different if appellate counsel had raised the claim.
The district court properly denied Mammone’s claim of ineffective assistance of appellate
counsel. “When a federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 98–99.
Mammone has not presented evidence to overcome this presumption, so AEDPA deference applies
to this claim. To establish deficient performance of appellate counsel, Mammone must demonstrate
that his appellate counsel’s decision not to raise the claim was objectively unreasonable. Smith v.
Robbins, 528 U.S. 259, 285 (2000); Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 433 (6th
No. 20-3069 Mammone v. Jenkins Page 36
Cir. 2006). To demonstrate prejudice, he must show that there was a reasonable probability that, but
for his counsel’s failure to raise the issue on appeal, he would have prevailed. Robbins, 528 U.S. at
285; Strickland, 466 U.S. at 694. A claim of ineffective assistance of appellate counsel has merit
only to the extent that the underlying claim has merit. See Davie v. Mitchell, 547 F.3d 297, 312 (6th
Cir. 2008).
Here, the Ohio Supreme Court’s denial of Mammone’s claim was not unreasonable.
Mammone’s trial counsel erred by referring to § 2929.04(B)(3), but Mammone cannot show
prejudice. Dr. Smalldon testified that while Mammone acted under extreme emotional distress and
had a severe mental disorder, he knew the difference between right and wrong at the time he
committed the crimes. Mammone, 13 N.E.3d at 1097. Mammone’s counsel argued to the jury that it
could consider two specific mitigating factors: Mammone’s lack of a criminal record, see
§ 2929.04(B)(5), and his mental disease or defect, see § 2929.04(B)(3). Counsel referred to Dr.
Smalldon’s testimony and the fact that Mammone talked calmly to the police after the murders and
admitted what he had done. The prosecutor responded that there was no evidence, including from
Dr. Smalldon, that Mammone lacked substantial capacity to appreciate the criminality of his conduct
or to conform to the requirements of the law. The trial court instructed the jurors to consider
Mammone’s history, character, and background; whether he lacked substantial capacity to appreciate
the criminality of his conduct or to conform his conduct to the law because of a mental defect or
disease; his lack of a significant history of prior convictions and delinquency adjudications; and any
other mitigating factors that weighed in favor of a sentence other than death. Dr. Smalldon’s
testimony did not support the § 2929.04(B)(3) mitigating factor, so Mammone’s counsel erred in
arguing that it did.
However, Mammone cannot show prejudice from trial counsel’s error because the jury was
free to consider Mammone’s mental state under § 2929.04(B)(7), the catch-all provision. Jurors are
presumed to follow the trial court’s instructions. See Richardson v. Marsh, 481 U.S. 200, 208
(1987). Under the trial court’s instructions, the jury presumably considered Dr. Smalldon’s
testimony and other evidence about Mammone’s mental health under § 2929.04(B)(7) as relevant to
whether Mammone should be sentenced to death. See Hill v. Mitchell, 400 F.3d 308, 325 (6th Cir.
2005) (holding counsel was not ineffective for failing to request an intoxication instruction because
the trial court instructed the jury to consider “any other factors that are relevant to the issue of
No. 20-3069 Mammone v. Jenkins Page 37
whether the offender should be sentenced to death”). Mammone cannot show that his trial counsel’s
reference to language from § 2929.04(B)(3) prevented the jury from considering his mental state
under § 2929.04(B)(7).
In addition, there is not a reasonable probability that, had trial counsel not referred to
§ 2929.04(B)(3), the jury would have sentenced Mammone to life. See Wiggins, 539 U.S. at 537;
Strickland, 466 U.S. at 695. The jury heard about Mammone’s difficult childhood, his religious
beliefs, his reaction to the breakdown of his marriage, and Dr. Smalldon’s diagnosis that he had a
severe personality disorder. Mammone, 13 N.E.3d at 1093–98. Dr. Smalldon testified that
Mammone expressed remorse for killing his former mother-in-law but maintained that killing his
children was the right thing to do. Id. at 1097–98. As part of its mandatory review of Mammone’s
death sentence, the Ohio Supreme Court found that his mental state was not entitled to any weight
under § 2929.04(B)(3) but gave “modest” weight to the evidence under § 2929.04(B)(7). Id. at
1098–1100. The court reasonably held that “the aggravating circumstances outweighed the
mitigating factors beyond a reasonable doubt.” Id. at 1100. Likewise, there is not a reasonable
probability that, had counsel not invoked § 2929.04(B)(3), the jury would have given such weight to
the evidence of Mammone’s mental state under § 2929.04(B)(7) that it would have sentenced him to
life. Because his underlying claim of ineffective assistance of trial counsel lacks merit, Mammone’s
claim of ineffective assistance of appellate counsel fails. See Davie, 547 F.3d at 312.
IV. CONCLUSION
For the reasons set forth above, we affirm the district court’s denial of a writ of habeas
corpus.